I actually got a glimpse of the orphan works problem from the other side just a few days ago, when I was contacted by the MIT OpenCourseWare program and asked if I would be willing to grant permission for them to use some of my material in a course they were posting online. In this case, the material was a single PowerPoint slide from a single lecture in the course. I hadn’t made the slide, but it quoted a single sentence from one of my papers and included a photo of me a friend had taken while I was still in grad school. I happily printed out the two-page license giving them the right to use the material, put it in a stamped envelope and mailed it back to them. The license file was slightly over ten times as long as the material I was licensing.
I suppose I can’t call this an orphan-works problem per say, since the slide had my name on it and it’s pretty easy to track me down online — perhaps this was just a child-lost-in-the-supermarket problem. Or in MIT’s case, a whole sea of children lost in the supermarket, each needing individual attention. (As Downward Battle points out, this is the same problem that has kept works like Eyes on the Prize out of the public eye for the past 10 years.) My heart goes out for two (and soon three) intellectual-property coordinators who are trying to dot all the i’s that make up even a single course.
And yet, though I didn’t think of it until after I sent back the forms, even I can’t be quite sure that I owned the rights to that material. It was a friend who took my photo, and we certainly didn’t talk about copyright issues at the time. More significantly, I can’t recall off the top of my head which of my papers the slide quoted from, and whether that was one of the journals or conferences that required me to sign over total ownership of the copyright to them before they’d publish. Should I have consulted my lawyer before giving MIT permission to talk about my work? I don’t have time for that kind of shenanigans, and besides, I’m a researcher — the whole point of my writing papers is so that what I’ve learned can be passed on to others.